Wanted: A Magna Carta for the 21st century

The attacks on the rule of law and access to justice – two key principles of the Magna Carta – by successive governments should lead us to rethink the existing relationship between the state and citizens and then to reimagine democracy.

Eventually, everyone came to enjoy the rights enshrined in the constitutional settlement between King John and powerful barons signed at Runnymede 800 years ago. This was no smooth process, however. The mass of the people had to struggle over many centuries for the rule of law – as opposed to the unbridled power of the state – to apply to them and their activities.

The Great Revolt of 1381 was as much against arbitrary power as privilege. In the English Revolution, the Levellers and Diggers fought for a constitutional settlement that would benefit the majority. The 1647 Agreement of the People put forward by the Levellers at the Putney Debates declared:

“That in all laws made or to be made, every person may be bound alike; and that no tenure, estate, charter, degree, birth, or place do confer any exemption from the ordinary course of legal proceedings whereunto others are subjected.”

The Levellers were saying that the wealthy were evading the law while other sections felt its full weight. At Putney, Colonel Rainsborough sided with the Levellers’ demand for the right to vote for all “free men”, saying: “…I think that the poorest he that is in England hath a life to live, as the greatest he; and therefore truly, Sir, I think it’s clear, that every man that is to live under a government ought first by his own consent to put himself under that government.”

Oliver Cromwell and the leadership of the New Model Army defeated the Levellers’ demands and agitators like John Lilburne were arrested for their views. He relied on sympathetic juries for his freedom, speaking for himself in the courts.

In the 18th century, radical reformers like Tom Paine resisted arbitrary arrest and censorship. He was driven into exile. In the 1830s, trade unionists were hanged or packed off to Australia for defending their right to organise collectively. It is worth noting that only in the 1830s were defence lawyers allowed to represent defendants in criminal cases.

As an insistence on the rule of law applied to all developed into the struggle for democracy and access to power itself, a long line of campaigns stepped up to the plate, like the Chartists, Suffragettes, political reformers, trade unionists and socialists and anti-colonial movements.

Underlying the eight centuries since Magna Carta is, therefore, an ebb and flow struggle between the state, its institutions and the “common people”. As Conor Gearty Professor of Human Rights Law at LSE says:

Successive governments and the Tories in particular have long had a problem with the rule of law. It seriously inhibits the security services in their desire to take national security wholly back – Cold War style – into the realm of the executive. It also inconveniently stands against the populist manoeuvring favoured by the dark side of both main Parties.

In the previous parliament, plans were brought forward to detain alleged terror suspects for up to 90 days without charge. This was reduced to 28 days when New Labour’s plans were rejected. Though down to 14 days at present, this is still the longest period of pre-charge detention of any comparable state.

Control orders that amount to house arrest on foreign nationals against whom there is insufficient evidence to charge them with an offence, were introduced by New Labour and reintroduced in a new form by the ConDem home secretary in 2011. Then there is the Special Immigration Appeals Commission that deals with appeals from persons deported by the Home Secretary under various powers. An appellant is represented to by a special advocate who is a person vetted by the Security Service. Evidence is heard in secret.

None of these state actions can be said to be compatible with the rule of law.

The present government has used austerity to justify draconian legal aid cuts and restrictions which undermine access to justice in a variety of ways for people without independent means, which is about most of society. One of the consequences is that judicial reviews of state decisions are much more difficult to launch.

One of Britain’s most senior judges launched a scathing attack on cuts to legal aid after a couple with learning disabilities were not provided with a lawyer to fight the forced adoption of their two-year-old son. Sir James Munby, the most senior family court judge in England and Wales, said it was “unthinkable” that the parents should have to face the local authority’s application without proper representation after they were denied legal aid because the father earned £34.64 too much.

He added that the state had “declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought to the goodwill of the legal profession”. “This is, it might be thought, both unprincipled and unconscionable,” the judge concluded.

The Tories had planned to hold some anti-terror trials in total secrecy until their plans were struck down by the Court of Appeal. No doubt a future government will try again. A recent report for the European Parliament on the use of secret evidence in trials singled out the UK. Secret evidence was considered a threat to the “rule of EU law”.

Legality is secondary when it comes to mass surveillance. Senior security official Charles Farr says searches on Google, Facebook, Twitter and YouTube, as well as emails to or from non-British citizens abroad, could be monitored legally by the security services without obtaining an individual warrant because they were deemed to be external communications.

In February, the Guardian reported that the regime that governs the sharing between Britain and the US of electronic communications intercepted in bulk was unlawful until last year. Ironically, the ruling was made by the Investigatory Powers Tribunal which deliberates in secret. Kafka, eat your heart out!

OpenDemocracy’s Anthony Barnett, last month joined a march from Runnymede in protest at the “Global Law Summit” conference taking place in London, ostensibly to mark Magna Carta’s anniversary. Barnett described it as “a monstrous jamboree of corporate law, tax avoidance, networking and global business”.

He added: “The corporations have stolen our political parties, they are stealing our media, they are robbing us of our government, they are suborning the law and now they are stealing our history, making it a plaything for networking.”

Barnett is right. Actually, the modern state could fairly be described as a market state. Many of its functions are outsourced or privatised. The state, always essentially capitalist but compelled in the post-war period to play a moderating role, has bared its teeth in the globalisation period. Now the state is openly partisan for the 1% and can count on the support of the mainstream parties to maintain the status quo.

Thus the centuries-long struggle for the rule of law and access to justice today poses a new kind of challenge. The erosion of Magna Carta gathers pace as the state places the “defence of the realm” top of its agenda in a kind of reflex action aimed at maintaining existing power relations.

The 800th anniversary of Britain’s first written constitutional settlement is as good a time as any to re-imagine democracy – not just in terms of government and state but also in relation to the economy, finance, land and the environment. The majority want to end austerity, tackle climate change, deal seriously with inequality, provide affordable housing and decent care for people in older age.

For that to become a reality, the limited, declining forms of democracy at present have to give way to a system where people themselves decide what’s best for their communities, towns and workplaces. In place of corporatocracy we want a real democracy, where the rule of law is absolute and access to justice is there for all.

Making the transition to a 21st century democracy founded on a 21st century Magna Carta is what Assemblies for Democracy are all about.